| OCR Text |
Show METHODS OF APPROPRIATING WATER OF WATERCOURSES 349 made available for late-season use when unregulated flows are low. And they may even be carried over from so-called "wet" years to mitigate the deficiencies of "dry" seasons. Encouragement of reservoir construction in the West is a matter of public policy. In Montana, the constitution declares that sites necessary for collecting and storing water shall be held to be a public use.613 Its legislation provides that "an appropriator may impound flood, seepage, and waste waters in a reservoir and thereby appropriate the same."614 And the supreme court rejected a contention of counsel that as a broad principle reservoirs should not be permitted in the course of or at the headwaters of adjudicated streams. The court acknowledged that the public is interested in having water conserved, and that construction and maintenance of reservoirs for conservation of flood waters and prevention of waste is of very high public importance.615 The constitution of Texas includes in its declaration of public rights and duties the "control, storing, preservation and distribution" of storm and flood waters.616 And the supreme court agreed that reservoir storage is one of the established methods of complying with the constitutional mandate.617 From early times in California, the right to store water for later use under an appropriative right has been implicit in the water law.618 In a decision rendered in 1918, the California Supreme Court stated that storage of water in a reservoir is not in itself a beneficial use, but is a mere means to the end of applying the water to public use.619 Later, the electorate adopted a constitutional amendment which commands that conservation of the State's water resources be exercised in the interest of the people and for the public welfare.620 In construing this amendment, the same court declared, as inherent in the fundamental plan, that storage of water for flood control, equalization, and stabilization of the flow and future use is within the beneficial uses to which the public waters may be put. This right of storage, said the court, is to be exercised only pursuant to lawful appropriations.621 613Mont. Const., art. Ill, § 15. 614Mont. Rev. Codes Ann. § 89-801(1) (Supp. 1969). 615Donich v. Johnson, 77 Mont. 229, 239-241, 250 Pac. 963 (1926). 616Tex. Const, art. XVI, § 59(a). '"Motlv.Boyd, 116 Tex. 82, 115-116, 286 S.W. 458 (1926). 618In Rupley v. Welch, 23 Cal. 452, 454-457 (1863), the priority of an appropriation exercised by means of a reservoir in the bed of a ravine was sustained as against the claim of a later appropriator. 619'Lindblom v. Round Valley Water Co., 178 Cal. 450, 456, 173 Pac. 994 (1918). 620Cal. Const., art. XIV, § 3. ^Meridian v. San Francisco, 13 Cal. (2d) 424, 449-450, 90 Pac. (2d) 537 (1939). California legislation enacted in 1969 provides that, subject to pertinent provisions regarding beneficial use of water and if considered to be in the public interest, the State Water Resources Control Board may approve appropriations by storage of water to be released for the purposes of protecting or enhancing the quality of other waters |
